The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
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The number of Americans killed or seriously injured by completely preventable medical e rrors every single year numbers in the hun- dreds of thousands. Preventable medical errors kill about 98,000 Americans annually, a ccording to the Institute of Medicine, and severely injure many more. 1 A study pub- lished in the Journal of Patient Safety esti- mates the number of our parents, siblings, children and fellow citizens' deaths from preventable medical errors at up to 400,000 each year. 2 This places purely pre- ventable medical errors on the list of lead- ing causes of death in the United States at between third (behind only heart disease and cancer, and ahead of stroke) and sixth. 3 So, preventable medical errors—what we lawyers refer to as negligence—are the pri- mary cause of the medical negligence litiga- tion crisis, not litigious victims and unscrupu- lous lawyers, right? Well, yes, and no. As it turns out, there is no litigation crisis. The "tort liability crisis" is a myth. A myth backed by a coordinated, multi-billion dollar campaign with the goal of avoid- ing the accountability of the judicial branch of government and increasing profits. 4 Their lobbyists line K-Street and walk the halls of Congress; the executive branch's watch-dog agencies are often headed by in- dustry insiders. But, jurors cannot be bought. And, they can be really effective at holding wrongdoers ac- countable. In truth, the number of personal injury, in- cluding medical negligence, lawsuits has been dropping for years. This has been documented by the courts' own data along with study after study. For example, accord- ing to the National Center for State Courts ( NCSC), tort cases accounted for just 4.4 percent of all civil cases filed in 2008, and declined by 25 percent between 1999 and 2 008. 5 T he Bureau of Justice Statistics (BJS) has repeatedly found that the number of tort cases filed is dropping in state courts. BJS found that the number of tort trials in state courts in the nation's 75 largest coun- ties dropped 31.5 percent between 1996 and 2005. The median awards in these trials dropped 18.4 percent over the same time period. 6 The downward trends in civil litigation filings are reflected in federal court caseloads as well. Between 1985 and 2003, the number of tort trials in U.S. Dis- trict Courts declined by 79 percent, from 3,604 in 1985 to fewer than 800 in 2003. 7 Ironically, the same study that found tort cases declined by 25 percent between 1999 and 2008 also revealed that contract filings, which are more likely to involve busi- nesses as plaintiffs, rose by 63 percent over that period. 8 Perhaps what we really need is business litigation reform. And, if there is no tort liability crisis general- ly, there certainly is no medical liability cri- sis. While tort cases only comprise 4.4 per- cent of the civil caseload, medical negli- gence cases account for only 2.8 percent of that 4.4 percent – or a little more than one- tenth of one-percent of the civil caseload. Even that small number has declined by 15 percent over the last 10 years. 9 Data from other sources such as the National Practi- tioner Databank (NPDB), to which all physicians' medical negligence payments must be reported, confirms the same downward trend. 10 So, is this one-tenth of one-percent of all civil cases filed comprised of these "frivolous" cas- es we hear so much about? Well, with be- tween 100,000 and 400,000 of us being killed by preventable medical errors (i.e. medical negligence) every year, to say nothing of those severely and permanently injured, common sense would lead one to believe no. And, in fact, there is some really good, peer-reviewed research to back this up. For example, in a study published in the New E ngland Journal of Medi- cine in 2006, researchers at Harvard University found that most medical negligence claims involve preventable medical error and serious injury and conclud- ed, "portraits of a malpractice system that is stricken with frivo- lous litigation are overblown." 11 The research revealed the overwhelming majority of claims filed to be meritori- ous, with 97 percent of claims involving medical injury and 80 percent involving physical injuries resulting in major disabil- ity or death. Very few claims not involv- ing preventable medical error were ever paid. In fact, the opposite was true – non-payment of cases involving medical negligence was a much bigger problem. The results of this study did not surprise anybody involved in the legitimate patient safety field. Kaiser Family Foundation Presi- dent Drew Altman said, "Maybe the ques- tion instead of 'Why do we have so many lawsuits?' is 'Why do we have so few?'" 12 William Sage, vice provost for health affairs at the University of Texas at Austin com- mented, "These findings are absolutely no surprise to any of us in the policy communi- ty. They are consistent with everything we suspected and learned from research over the last 20 years, which is that the major problem out there is medical errors that are not compensated, rather than frivolous claims that are compensated." 13 Contrary to the "frivolous lawsuit" myth that has been sold to the public, the data on the number of blatant, utterly inexcus- able cases of medical negligence that nev- er result in a claim is staggering. In this country, in this era, with as much as we spend on health care, and as effective as we are at putting systems in place to prevent errors in other fields, a hospital should never allow a wrong side (physician removes the good kidney instead of the 17 B&B; • 9.14 F E AT U R E : T O R T S NO ACCOUNTABILITY = NO SAFETY: HOW TORT "REFORM" ENDANGERS US ALL By: Vanessa B. Cantley / article continued on pg. 19 COUNTER P O I N T